Exhibit 10.1
Form of Agreement
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EMPLOYEE BENEFITS ALLOCATION AGREEMENT
dated as of [ ], 1997
by and between
▇▇▇▇▇▇ INTERNATIONAL, INC.,
an Indiana corporation
and
NEW ▇▇▇▇▇▇ INTERNATIONAL, INC.,
an Indiana corporation
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
Section 1.01 General.......................................... 2
Section 1.02 Schedules, Etc................................... 11
Section 1.03 Certain Constructions............................ 11
ARTICLE II
EMPLOYEE BENEFITS; LABOR MATTERS
Section 2.01 New ▇▇▇▇▇▇ Free-Standing Qualified Plan.......... 12
Section 2.02 Company Retained Qualified Plans................. 14
Section 2.03 Company-New ▇▇▇▇▇▇ Joint Qualified Plans......... 15
Section 2.04 Foreign Plans.................................... 22
Section 2.05 Welfare Plans.................................... 24
Section 2.06 Stock Option Plans............................... 26
Section 2.07 Company Incentive Plans.......................... 27
Section 2.08 Severance Pay.................................... 29
Section 2.09 Company Restricted Trust......................... 30
Section 2.10 Company Miscellaneous Plans; Post-
Distribution Liabilities....................... 31
Section 2.11 Collective Bargaining Agreements; Labor
Management Relations Act....................... 31
Section 2.12 Other Balance Sheet Adjustments.................. 32
Section 2.13 Preservation of Rights To Amend or
Terminate Plans................................ 32
Section 2.14 Reimbursement; Indemnification................... 33
Section 2.15 Further Transfers................................ 34
ARTICLE III
MISCELLANEOUS
Section 3.01 Complete Agreement; Construction................. 35
Section 3.02 Guarantee of Subsidiaries' Obligations........... 35
Section 3.03 Failure of the Company and New ▇▇▇▇▇▇
To Agree on Certain Determinations............. 36
Section 3.04 Governing Law.................................... 36
Section 3.05 Notices.......................................... 37
Section 3.06 Amendments....................................... 38
Section 3.07 Successors and Assigns........................... 38
Section 3.08 Termination...................................... 38
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Section 3.09 No Third Party Beneficiaries..................... 38
Section 3.10 Titles and Headings.............................. 38
Section 3.11 Schedules........................................ 39
Section 3.12 Legal Enforceability............................. 39
Signatures...................................................... 40
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EMPLOYEE BENEFITS ALLOCATION AGREEMENT
Employee Benefits Allocation Agreement (the "Agreement"), dated as
of [ ], 1997, by and between ▇▇▇▇▇▇ International, Inc., an Indiana corporation
(the "Company"), and New ▇▇▇▇▇▇ International, Inc., an Indiana corporation and
a wholly owned subsidiary of the Company ("New ▇▇▇▇▇▇").
WHEREAS, the Board of Directors of the Company has determined it is
appropriate and desirable to enter into the Distribution Agreement (the
"Distribution Agreement") dated as of [ ], 1997, by and between the Company and
New ▇▇▇▇▇▇, pursuant to which, among other things, the Company will distribute
to holders of its common stock all the issued and outstanding shares of common
stock of New ▇▇▇▇▇▇ (the "Distribution");
WHEREAS, the Board of Directors of the Company has determined it is
appropriate and desirable to enter into the Combination Agreement, dated as of
November 25, 1996 (the "Combination Agreement"), by and among the Company,
Autoliv AB, a corporation organized under the laws of the Kingdom of Sweden
("Autoliv"), Autoliv, Inc., a Delaware corporation ("New Parent"), and ASP
Merger Sub Inc. a Delaware corporation ("Newco Sub") and wholly owned subsidiary
of New Parent, pursuant to which, among other things, Newco Sub will be merged
with and into the Company (the "Merger") and New Parent will
offer to acquire all of the outstanding capital stock of Autoliv pursuant to the
Exchange Offer (as defined in the Combination Agreement, and, together with the
other transactions contemplated thereby, the "Transactions");
WHEREAS, it is intended that in connection with such separation and
distribution New ▇▇▇▇▇▇ will adopt employee benefit plans and programs which are
substantially identical to those sponsored by the Company; and
WHEREAS, in connection with such separation and distribution, the
Company and New ▇▇▇▇▇▇ desire to provide for the allocation of assets and
liabilities and other matters relating to employee benefit arrangements.
NOW, THEREFORE, in consideration of the mutual agreements,
provisions and covenants contained in this Agreement, the parties hereby agree
as follows:
ARTICLE I
DEFINITIONS
Section 1.01 General. As used in this Agreement, the following terms
shall have the following meanings:
Accountants: Ernst & Young or any other "Big Six" accounting firm
which is New ▇▇▇▇▇▇'▇ outside auditor.
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Bonus Plan: the ▇▇▇▇▇▇ International, Inc. executive bonus program
which is comprised of the ▇▇▇▇▇▇ International, Inc. Key Executive Annual Bonus
Program, the ▇▇▇▇▇▇ International, Inc. Staff Executive Annual Bonus Program and
the ▇▇▇▇▇▇ International, Inc. Group Executive Annual Bonus Program.
Code: the Internal Revenue Code of 1986, as amended, or any
successor legislation.
Collective Bargaining Agreement: any collective bargaining and other
labor agreement to which the Company or any of its subsidiaries is a party,
including, without limitation, those listed on Schedule A.
Commission: the Securities and Exchange Commission.
Company Business: any business or operation of the Company and its
subsidiaries which is, pursuant to the Distribution Agreement, to be conducted,
following the Distribution, by the Company or any Company Subsidiary or any
business or operation which is, following the Distribution, otherwise conducted
by the Company or any Company Subsidiary.
Company Common Stock: the Common Stock, par value $1.00 per share,
of the Company.
Company Employee: any individual who is, following the Distribution,
intended to be employed by the Company or any Company Subsidiary on an ongoing
basis.
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Company Incentive Plan: the Bonus Plan, the Company Option Plan or
the LTIP.
Company Individual: any individual who (i) is a Company Employee as
of the Cut-off Date or, following the Distribution, becomes a Company Employee
pursuant to Section 2.15 hereof or (ii) is, as of the Cut-off Date, an employee
of or former employee of the Company or its predecessors whose last employment
with the Company or its predecessors was with a Company Business or a Former
Company Business other than anyone who is to become a New ▇▇▇▇▇▇ Employee
pursuant to Section 2.15 hereof or who was a corporate officer at the time of
retirement or (iii) is a beneficiary of any individual specified in clause (i)
or (ii).
Company Miscellaneous Plans: the Plans of the Company and its
subsidiaries, including, without limitation, the Plans listed on Schedule D, but
excluding any Qualified Plan, Welfare Plan, any of the Company Incentive Plan,
any Plan which provides for the payment of severance, salary continuation or
similar benefits and any Plan which is governed by a Collective Bargaining
Agreement.
Company-New ▇▇▇▇▇▇ Joint Qualified Plan: the ▇▇▇▇▇▇ International,
Inc. Pension Plan (the "Joint Defined Benefit Plan") or the ▇▇▇▇▇▇
International, Inc. Employee Savings and Investment Plan (the "Joint Savings
Plan").
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Company Option: an option to purchase shares of the Company Common
Stock granted pursuant to the Company Option Plan.
Company Option Plan: the ▇▇▇▇▇▇ International, Inc. 1989 Incentive
Plan or any predecessor stock option plan of the Company pursuant to which there
are outstanding options.
Company Restricted Trust: the trust established pursuant to a trust
agreement between the Company and Bankers Trust Company, as trustee, dated June
23, 1989.
Company Retained Foreign Plan: any Plan which is maintained by a
foreign subsidiary or foreign division of the Company or any of its subsidiaries
exclusively for the benefit of Company Individuals.
Company Retained Qualified Plan: a Qualified Plan sponsored or
maintained by the Company or any of its subsidiaries exclusively for the benefit
of Company Individuals.
Company Subsidiary: as of and following the Distribution Date, any
direct or indirect subsidiary of the Company other than New ▇▇▇▇▇▇ or any New
▇▇▇▇▇▇ Subsidiary.
Company VEBA: the ▇▇▇▇▇▇ International, Inc. Employees' Insurance
Trust established pursuant to a Trust Agreement dated February 22, 1995 between
the Company and Bank of America Illinois (successor to Continental Trust
Company).
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Current Plan Year: the plan year or fiscal year, to the extent
applicable with respect to any Plan, during which the Cut-off Date occurs. The
plan year for the Bonus Plan, the Company Option Plan and the LTIP shall be the
year ended June 30.
Cut-off Date: the close of business on the Distribution Date.
Distribution: the distribution to holders of Company Common Stock of
the shares of New ▇▇▇▇▇▇ Common Stock and related rights owned by the Company on
the Distribution Date on the basis of one share of New ▇▇▇▇▇▇ Common Stock for
each outstanding share of Company Common Stock.
Distribution Date: the date determined by the Company's Board as of
which the Distribution shall be effected, which is presently contemplated to be
[March 31, 1997].
Enrolled Actuary: ▇▇▇▇▇▇ Associates, or any other enrolled actuary
making actuarial or similar determinations with respect to assets or liabilities
relating to a particular employee benefit plan selected by New ▇▇▇▇▇▇.
ERISA: the Employee Retirement Income Security Act of 1974, as
amended, or any successor legislation.
Ex-Distribution Date: the first trading day prior to the
Distribution Date on which the Company Common Stock is
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traded on the New York Stock Exchange ex-dividend with respect to the
Distribution of New ▇▇▇▇▇▇ Common Stock; provided, that if the Company Common
Stock does not trade ex-dividend prior to the Distribution Date, the
Ex-Distribution Date shall be deemed to be the Distribution Date.
Former Company Businesses: all of the businesses and operations
heretofore but not currently conducted by the Company or any of its current or
former subsidiaries or conducted currently or heretofore by any of the Company's
former subsidiaries all of which are listed on Schedule B and all businesses or
operations predominantly managed or operated by, or otherwise operationally
related to, the Company's Automotive Safety Products Group which have been sold
or otherwise disposed of or discontinued prior to the Distribution Date but
shall not include any of the Former New ▇▇▇▇▇▇ Businesses.
Former New ▇▇▇▇▇▇ Businesses: all of the businesses and operations
heretofore but not currently conducted by the Company or any of its current or
former subsidiaries or hereto or currently conducted by any of its former
subsidiaries or predecessors which are listed on Schedule C and any other
business and operation not currently conducted by the Company or any of its
current subsidiaries or any predecessors of the Company including ▇▇▇▇▇▇
Thiokol, Inc., Thiokol Chemical Corporation, Thiokol Corporation or ▇▇▇▇▇▇
Norwich Products Inc. and
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their respective subsidiaries and affiliates which does not constitute a Former
Company Business.
IRS: the Internal Revenue Service.
LTIP: the ▇▇▇▇▇▇ International, Inc. Key Executive Long Term
Incentive Program.
New ▇▇▇▇▇▇ Businesses: any business or operation of the Company and
its subsidiaries which is, pursuant to the Distribution Agreement, to be
conducted, following the Distribution, by New ▇▇▇▇▇▇ or any New ▇▇▇▇▇▇
Subsidiary, including the Corporate Operations (as defined in the Distribution
Agreement) or any business or operation which is, following the Distribution,
otherwise conducted by New ▇▇▇▇▇▇ or any New ▇▇▇▇▇▇ Subsidiary.
New ▇▇▇▇▇▇ Common Stock: the Common Stock, par value $1.00 per
share, of New ▇▇▇▇▇▇.
New ▇▇▇▇▇▇ Employee: any individual who is, following the
Distribution, intended to be employed by New ▇▇▇▇▇▇ or a New ▇▇▇▇▇▇ Subsidiary
on an ongoing basis.
New ▇▇▇▇▇▇ Free-Standing Foreign Plan: any Plan which is maintained
by a foreign subsidiary or foreign division of the Company or any of its
subsidiaries exclusively for the benefit of New ▇▇▇▇▇▇ Individuals.
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New ▇▇▇▇▇▇ Free-Standing Qualified Plan: the ▇▇▇▇▇▇ International,
Inc. Pension Plan for Collectively Bargained Employees, the ▇▇▇▇▇▇
International, Inc. Retirement Income Plan for Collectively Bargained Employees,
the ▇▇▇▇▇▇ International, Inc. Bargaining Unit Employee Savings and Investment
Plan, and the ▇▇▇▇▇▇ International, Inc. Retirement Savings Plan.
New ▇▇▇▇▇▇ Individual: any individual who (i) is a New ▇▇▇▇▇▇
Employee as of the Cut-off Date or, following the Distribution, becomes a New
▇▇▇▇▇▇ Employee pursuant to the second sentence of Section 2.15 hereof, (ii) is,
as of the Cut-off Date, an employee of or former employee of the Company or its
predecessors whose last employment with the Company or its predecessors was with
a New ▇▇▇▇▇▇ Business or a Former New ▇▇▇▇▇▇ Business (including, without
limitation, retirees from corporate headquarters' staff who retired on or prior
to the Cut-off Date or any corporate officer who retired prior to the Cut-Off
Date) other than anyone who is to become a Company Employee, or (iii) is a
beneficiary of any individual specified in clause (i) or (ii).
New ▇▇▇▇▇▇ Subsidiary: any direct or indirect subsidiary of the
Company that, effective as of the Distribution Date or otherwise in connection
with the Distribution, will be,
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or is contemplated by the Distribution Agreement to be, a direct or indirect
subsidiary of New ▇▇▇▇▇▇, and any other subsidiary of New ▇▇▇▇▇▇ which may be
organized or acquired on or after the Distribution Date.
New ▇▇▇▇▇▇ Option Plan: a Plan to be adopted by New ▇▇▇▇▇▇ pursuant
to which options to purchase shares of New ▇▇▇▇▇▇ Common Stock may be granted to
New ▇▇▇▇▇▇ Employees.
New ▇▇▇▇▇▇ Qualified Plan: a Qualified Plan to be sponsored or
maintained by New ▇▇▇▇▇▇ or a New ▇▇▇▇▇▇ Subsidiary which will provide benefits
for New ▇▇▇▇▇▇ Individuals who, immediately prior to the Cut-off Date, are
active or inactive participants in or otherwise entitled to benefits under any
Company-New ▇▇▇▇▇▇ Joint Qualified Plan and which is expected to provide
substantially identical benefits to the Company-New ▇▇▇▇▇▇ Joint Qualified Plan
in which each such New ▇▇▇▇▇▇ Individual currently participates.
Plan: any plan, program, policy or arrangement or contract or
agreement providing benefits for any group of employees or former employees or
individual employee or former employee, or the beneficiary or beneficiaries of
any such employee or former employee, whether formal or informal or written or
unwritten and whether or not legally binding, and including, without limitation,
any means, whether or not legally
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required, pursuant to which any benefit is provided by an employer to any
employee or former employee or the beneficiary or beneficiaries of any such
employee or former employee.
Prior Plan Year: a plan year or fiscal year, to the extent
applicable with respect to any Plan, which ended on or prior to the Cut-off
Date.
Qualified Plan: a Plan which is an employee pension benefit plan
(within the meaning of Section 3(2) of ERISA) and which constitutes or is
intended in good faith to constitute a qualified plan under Section 401(a) of
the Code.
Welfare Plan: any Plan, including, without limitation, the Plans
listed on Schedule E, which is not a Qualified Plan and which provides medical,
health, disability, accident, life insurance, death, dental or any other welfare
benefit, including, without limitation, any post-employment benefit.
Section 1.02 Schedules, Etc. References to a "Schedule" are, unless
otherwise specified, to one of the Schedules attached to this Agreement, and
references to a "Section" are, unless otherwise specified, to one of the
Sections of this Agreement.
Section 1.03 Certain Constructions. References to the singular in
this Agreement shall refer to the plural and vice-versa and references to the
disjunctive shall refer to the
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conjunctive and vice-versa and references to the masculine shall refer to the
feminine and vice-versa.
ARTICLE II
EMPLOYEE BENEFITS; LABOR MATTERS
Section 2.01 New ▇▇▇▇▇▇ Free-Standing Qualified Plan.
(a) Effective as of the Cut-off Date, New ▇▇▇▇▇▇ shall or shall
cause one or more New ▇▇▇▇▇▇ Subsidiaries, as appropriate, to assume or retain,
as the case may be, and be solely responsible for, all assets, liabilities and
obligations whatsoever of the Company and its subsidiaries under the New ▇▇▇▇▇▇
Free-Standing Qualified Plan; provided, however, that the Company shall make all
required contributions, no later than the later of the Cut-off Date and the date
such contributions are legally required to be made, to such New ▇▇▇▇▇▇
Free-Standing Qualified Plan for all Prior Plan Years, to the extent not
previously made. The Company and New ▇▇▇▇▇▇ shall take such action as is
necessary to effect an adjustment to the books of the Company and New ▇▇▇▇▇▇ so
that, as of the Cut-off Date, the prepaid expense balances and accrued pension
liabilities with respect to the New ▇▇▇▇▇▇ Free-Standing Qualified Plan are
reflected on New ▇▇▇▇▇▇'▇ consolidated balance sheet rather than the Company's
consolidated balance sheet as of the Cut-off Date. New ▇▇▇▇▇▇ and the Company
shall each take, or
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cause to be taken, all such actions as may be necessary or appropriate in order
to establish New ▇▇▇▇▇▇ or the New ▇▇▇▇▇▇ Subsidiaries, as appropriate, as
successor to the Company or any of its subsidiaries, as to all rights, assets,
duties, liabilities and obligations under, or with respect to, the New ▇▇▇▇▇▇
Free-Standing Qualified Plan, including, but not limited to, the rights, assets,
duties, liabilities and obligations of the Company or any of its subsidiaries
under, or with respect to, any and all trust agreements to the extent that they
relate to such New ▇▇▇▇▇▇ Free-Standing Qualified Plan. From and after the
Cut-off Date, the Company and the Company Subsidiaries shall cease to have any
liability or obligation whatsoever with respect to the New ▇▇▇▇▇▇ Free-Standing
Qualified Plan, except as otherwise specifically provided in this Section 2.01.
(b) Upon New ▇▇▇▇▇▇ or any New ▇▇▇▇▇▇ Subsidiary becoming the
successor employer or successor plan sponsor to the Company or any of its
subsidiaries under such New ▇▇▇▇▇▇ Free-Standing Qualified Plan, the Company
agrees to take such actions as may be necessary to amend each individual trust
in order for New ▇▇▇▇▇▇ or a New ▇▇▇▇▇▇ Subsidiary effectively to maintain and
administer such New ▇▇▇▇▇▇ Free-Standing Qualified Plan, including, if
necessary, to direct the trustee of each individual trust, or, to the extent
applicable, each master trust in which assets of such New ▇▇▇▇▇▇ Free-Standing
Qualified Plan are invested, to transfer to the new trustee or other funding
agent appointed by New ▇▇▇▇▇▇ for such plan the amount
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of assets in such individual trust or master trust, as the case may be,
determined by the former trustee of such New ▇▇▇▇▇▇ Free-Standing Qualified Plan
to be attributable to such New ▇▇▇▇▇▇ Free-Standing Qualified Plan. Such
transfer shall be made in cash, securities, other property or a combination
thereof, as determined by the Company and New ▇▇▇▇▇▇. The Company agrees, during
the period ending with the date of complete transfer of assets to a trust or
other funding arrangement maintained by New ▇▇▇▇▇▇ to cause distributions in
respect of retired or terminated participants who are New ▇▇▇▇▇▇ Individuals to
be made, on behalf of New ▇▇▇▇▇▇, from the New ▇▇▇▇▇▇ Free-Standing Qualified
Plan in accordance with applicable law and pursuant to plan provisions and to
cause loans and hardship distributions to be made in accordance with applicable
law and pursuant to plan provisions. The Company agrees that it shall, as soon
as practicable after the Distribution Date, provide New ▇▇▇▇▇▇ such information
(in the possession of the Company or a Company Subsidiary and not already in the
possession of New ▇▇▇▇▇▇ or a New ▇▇▇▇▇▇ Subsidiary) as may be reasonably
requested by New ▇▇▇▇▇▇ and necessary in order for New ▇▇▇▇▇▇ or any New ▇▇▇▇▇▇
Subsidiary effectively to maintain and administer the New ▇▇▇▇▇▇ Free-Standing
Qualified Plan.
Section 2.02 Company Retained Qualified Plans. Effective as of the
Cut-off Date, the Company shall or shall
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cause one or more Company Subsidiaries, as appropriate, to retain and be solely
responsible for, all liabilities and obligations whatsoever of the Company and
its subsidiaries under each of the Company Retained Qualified Plans. The Company
and New ▇▇▇▇▇▇ shall take such action as is necessary to effect an adjustment to
the books of the Company and New ▇▇▇▇▇▇ so that, as of the Cut-off Date, the
prepaid expense balances and accrued pension liabilities with respect to the
Company Retained Qualified Plans are reflected on the Company's consolidated
balance sheet rather than New ▇▇▇▇▇▇'▇ consolidated balance sheet as of the
Cut-off Date. From and after the Cut-off Date, New ▇▇▇▇▇▇ and the New ▇▇▇▇▇▇
Subsidiaries shall cease to have any liability or obligation whatsoever with
respect to any of the Company Retained Qualified Plans.
Section 2.03 Company-New ▇▇▇▇▇▇ Joint Qualified Plans.
(a) As soon as practicable after the date hereof and effective as of
the Cut-off Date, New ▇▇▇▇▇▇ shall take, or cause to be taken, all action
necessary and appropriate to establish and administer one or more new New ▇▇▇▇▇▇
Qualified Plans and to provide benefits thereunder for all New ▇▇▇▇▇▇
Individuals who, immediately prior to the Cut-off Date, were participants in or
otherwise entitled to benefits under any Company-New ▇▇▇▇▇▇ Joint Qualified
Plan. New ▇▇▇▇▇▇ agrees that each such New ▇▇▇▇▇▇ Individual shall be, to the
extent
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applicable, entitled, for all purposes under any applicable new New ▇▇▇▇▇▇
Qualified Plan, to be credited with the term of service and any accrued benefit
or account balance credited to such New ▇▇▇▇▇▇ Individual as of the Cut-off Date
under the terms of any applicable Company-New ▇▇▇▇▇▇ Joint Qualified Plan as if
such service had been rendered to New ▇▇▇▇▇▇ and as if such accrued benefit or
account balance had originally been credited to such New ▇▇▇▇▇▇ Individual under
the new New ▇▇▇▇▇▇ Qualified Plan. The Company agrees to provide New ▇▇▇▇▇▇, as
soon as practicable after the Distribution Date (with the cooperation of New
▇▇▇▇▇▇, to the extent that relevant information is in the possession of New
▇▇▇▇▇▇ or a New ▇▇▇▇▇▇ Subsidiary), with a list of the New ▇▇▇▇▇▇ Individuals
who were, to the best knowledge of the Company, participants in or otherwise
entitled to benefits under each Company-New ▇▇▇▇▇▇ Joint Qualified Plan
immediately prior to the Cut-off Date, together with a listing, if requested by
New ▇▇▇▇▇▇, of each such New ▇▇▇▇▇▇ Individual's term of service for eligibility
and vesting purposes under such Plan and a listing of each such New ▇▇▇▇▇▇
Individual's accrued benefit or account balance thereunder. The Company shall,
as soon as practicable after the Distribution Date, provide New ▇▇▇▇▇▇ with such
additional information (in the possession of the Company or a Company Subsidiary
and not already in the possession of New ▇▇▇▇▇▇ or a New ▇▇▇▇▇▇ Subsidiary) as
may be reasonably requested by New ▇▇▇▇▇▇ and necessary in order for New ▇▇▇▇▇▇
or the New ▇▇▇▇▇▇ Subsidiary to
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establish and administer effectively any new New ▇▇▇▇▇▇ Qualified Plan.
(b) The Company agrees, as soon as practicable following the
Distribution Date, to direct the trustee of the trust funding the Company-New
▇▇▇▇▇▇ Joint Qualified Plan which is a Joint Defined Benefit Plan to transfer to
the trustee or other funding agent of any applicable new New ▇▇▇▇▇▇ Qualified
Plan, in cash, securities, other property or a combination thereof, as
determined by the Company and New ▇▇▇▇▇▇, an amount equal to (W) plus (X) less
(Y), as adjusted by (Z) and as further reduced to reflect contributions due but
not paid in respect of New ▇▇▇▇▇▇ Individuals with respect to the portion of the
Current Plan Year which ends on the Cut-off Date (as set forth on Annex I);
where (W) equals that amount of the assets of the Joint Defined Benefit Plan
which would be allocated to the plan participants and beneficiaries who are New
▇▇▇▇▇▇ Individuals if the Company-New ▇▇▇▇▇▇ Joint Defined Benefit Plan had been
terminated as of the Distribution Date (the "Valuation Date"), using the
actuarial assumptions and methods set forth in Annex I, including the procedures
outlined in ERISA Section 4044 for allocating assets among priority categories
(with all of the foregoing calculations being determined as of the Valuation
Date by the Enrolled Actuary, which determination shall be based upon the
actuarial assumptions set forth on Annex I hereto); where (X) equals the amount
of all contributions, if any, attributable to New ▇▇▇▇▇▇ Individuals made
subsequent to
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the Valuation Date to the Joint Defined Benefit Plan through the date of
complete transfer; where (Y) equals aggregate payments made from the trust
relating to the Joint Defined Benefit Plan in respect of New ▇▇▇▇▇▇ Individuals
from the Valuation Date through the date of complete transfer; and where (Z)
equals the amount of the net earnings or losses, as the case may be, from the
Valuation Date through the date of transfer, on the average of the daily
balances of W, X and Y and based upon the actual rate of return earned by the
applicable Joint Defined Benefit Plan during such period. To the extent that
total assets of the Joint Defined Benefit Plan exceeds the total liabilities of
the Joint Defined Benefit Plan as of the Valuation Date calculated using the
actuarial assumptions on Annex I (the "Excess"), then in addition to the
transfer described in the preceding sentence an additional amount of assets
shall be transferred equal to the percentage of such Excess that the liabilities
of such plan (determined using the same actuarial assumptions) attributable to
New ▇▇▇▇▇▇ Individuals bears to the total plan liabilities. Notwithstanding the
foregoing provisions of Section 2.03(b), each such transfer shall be adjusted,
if and to the extent necessary, to comply with Section 414(l) of the Code and
the regulations promulgated thereunder. The Company further agrees that, as soon
as practicable following the later of the Distribution Date and the
establishment of the qualified trust for the New ▇▇▇▇▇▇ Qualified Plan which is
a Joint Defined Benefit Plan, an initial
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transfer of assets will be made based on an estimate prepared by the Enrolled
Actuary of the amount described in clause (W) as of the Valuation Date (using
January 1, 1996 participant data for such estimate). Once the final transfer
amount is determined, a transfer of assets will be made from the Company-New
▇▇▇▇▇▇ Joint Qualified Plan to the New ▇▇▇▇▇▇ Qualified Plan (or vice versa) as
necessary to result in a split of assets which is consistent with this section.
(c) The Company agrees, as soon as practicable following the
Distribution Date, to direct the trustee of the trust funding the Company-New
▇▇▇▇▇▇ Joint Qualified Plan which is a Joint Savings Plan to transfer to the
trustee or other funding agent of any applicable new New ▇▇▇▇▇▇ Qualified Plan
in cash, securities or other property or a combination thereof, as determined by
the Company and New ▇▇▇▇▇▇, an amount equal to the account balances as of the
date of transfer attributable to the participants and beneficiaries in the Joint
Savings Plan who are New ▇▇▇▇▇▇ Individuals plus the portion of any unallocated
contributions and trust earnings attributable to such participants and
beneficiaries who are New ▇▇▇▇▇▇ Individuals. To the extent practicable such
transfers shall be effected so as to preserve investment elections of the
participants and beneficiaries in the Joint Savings Plan.
(d) New ▇▇▇▇▇▇ and the Company shall, in connection with the
transfers described in this Section 2.03, cooperate in
-19-
making any and all appropriate filings required under the Code or ERISA, and the
regulations thereunder, and any applicable securities laws and take all such
action as may be necessary and appropriate to cause such transfers to take place
as soon as practicable after the Distribution Date; provided, however, that each
such transfer shall not take place until as soon as practicable after the later
of (i) the expiration of a 30-day period following the date of filing the
required Forms 5310 (or any successor form thereto) with the IRS and (ii) the
earlier of (A) the receipt of a favorable IRS determination letter with respect
to the qualification of each applicable new New ▇▇▇▇▇▇ Qualified Plan under
Section 401(a) of the Code or (B) the receipt by the Company of an opinion of
New ▇▇▇▇▇▇'▇ counsel in the form set forth in Annex III hereto to the effect
that each applicable new New ▇▇▇▇▇▇ Qualified Plan is intended in good faith to
be qualified under Section 401(a) of the Code. The Company agrees to provide to
New ▇▇▇▇▇▇'▇ counsel such information in the possession of the Company or any
Company Subsidiary as may be reasonably requested by New ▇▇▇▇▇▇'▇ counsel in
connection with the issuance of such opinion. The Company agrees, during the
period ending with the date of complete transfer of assets and liabilities to
each such new New ▇▇▇▇▇▇ Qualified Plan, to cause distributions in respect of
terminated or retired participants who are New ▇▇▇▇▇▇ Individuals to be made, on
behalf of New ▇▇▇▇▇▇, from the relevant Company-New ▇▇▇▇▇▇
-20-
Joint Qualified Plan in accordance with applicable law and pursuant to plan
provisions.
(e) Except as specifically set forth in this Section 2.03, from and
after the Cut-off Date, the Company and the Company Subsidiaries shall cease to
have any liability or obligation whatsoever with respect to New ▇▇▇▇▇▇
Individuals under the Company-New ▇▇▇▇▇▇ Joint Qualified Plans, and New ▇▇▇▇▇▇
shall assume or retain, as the case may be, and shall be solely responsible for,
all liabilities and obligations whatsoever of the Company and its subsidiaries
with respect to New ▇▇▇▇▇▇ Individuals under the Company-New ▇▇▇▇▇▇ Joint
Qualified Plans; provided, however, that the Company shall either be responsible
for or make all required contributions, no later than the later of the Cut-off
Date and the date such contributions are legally required to be made, in respect
of New ▇▇▇▇▇▇ Individuals with respect to each Company-New ▇▇▇▇▇▇ Joint
Qualified Plan for all Prior Plan Years and for the portion of the Current Plan
Year ending on the Cut-off Date (determined as set forth in Section 2.03(b)), to
the extent not previously made. The Company and New ▇▇▇▇▇▇ shall take such
action as is necessary to effect an adjustment to the books of the Company and
New ▇▇▇▇▇▇ so that, as of the Cut-off Date, the prepaid expense balances and
accrued pension liabilities with respect to the Company-New ▇▇▇▇▇▇ Joint
Qualified Plans to the extent attributable to the New ▇▇▇▇▇▇ Individuals are
reflected on New ▇▇▇▇▇▇'▇ consolidated
-21-
balance sheet rather than the Company's consolidated balance sheet as of the
Cut-off Date.
Section 2.04 Foreign Plans. (a) With respect to each New ▇▇▇▇▇▇
Free-Standing Foreign Plan:
(i) New ▇▇▇▇▇▇ and the Company shall take, or cause to be taken, all
such action as may be necessary or appropriate in order to establish New
▇▇▇▇▇▇ or one or more New ▇▇▇▇▇▇ Subsidiaries, as appropriate, as
successor to the Company or any of its subsidiaries as to all rights,
assets, duties, liabilities and obligations as of the Cut-off Date under,
or with respect to, such New ▇▇▇▇▇▇ Free-Standing Foreign Plan. The
Company agrees that it shall, as soon as practicable, provide New ▇▇▇▇▇▇
with all information (in the possession of the Company or a Company
Subsidiary and not already in the possession of New ▇▇▇▇▇▇ or a New ▇▇▇▇▇▇
Subsidiary) as may be reasonably requested by New ▇▇▇▇▇▇ and necessary for
the New ▇▇▇▇▇▇ or New ▇▇▇▇▇▇ Subsidiaries to administer effectively such
New ▇▇▇▇▇▇ Free-Standing Foreign Plan.
(ii) From and after the Cut-off Date, the Company and the Company
Subsidiaries shall cease to have any liability or obligation whatsoever
under such New ▇▇▇▇▇▇ Free-Standing Foreign Plan; provided, however, that
the Company shall make all required contributions to such New ▇▇▇▇▇▇
Free-Standing Foreign Plan for all Prior Plan Years, to
-22-
the extent not previously made. The Company and New ▇▇▇▇▇▇ shall take such
action as is necessary to effect an adjustment to the books of the Company
and New ▇▇▇▇▇▇ so that, as of the Cut-off Date, the prepaid expense
balances and accrued pension liabilities with respect to such New ▇▇▇▇▇▇
Free-Standing Foreign Plan are reflected on New ▇▇▇▇▇▇'▇ consolidated
balance sheet, rather than the Company's consolidated balance sheet as of
the Cut-off Date. As of the Cut-off Date, New ▇▇▇▇▇▇ and the New ▇▇▇▇▇▇
Subsidiaries shall assume or retain, as the case may be, and shall be
solely responsible for, all liabilities and obligations whatsoever under
such New ▇▇▇▇▇▇ Free-Standing Foreign Plan, except as otherwise
specifically provided in this Section 2.04(a)(ii).
(b) Effective as of the Cut-off Date, Company and the Company
Subsidiaries shall take, or cause to be taken, all such action as may be
necessary or appropriate in order to establish Company or one or more Company
Subsidiaries, as appropriate, to retain and be solely responsible for all
assets, liabilities and obligations whatsoever of the Company and its
subsidiaries under each Company Retained Foreign Plan. The Company and New
▇▇▇▇▇▇ shall take such action as is necessary to effect an adjustment to the
books of the Company and New ▇▇▇▇▇▇ so that, as of the Cut-off Date, the prepaid
expense balances and accrued pension liabilities with respect to the Company
Retained Foreign Plans are reflected on the Company's
-23-
consolidated balance sheet rather than New ▇▇▇▇▇▇'▇ consolidated balance sheet
as of the Cut-off Date. From and after the Cut-off Date, New ▇▇▇▇▇▇ and the New
▇▇▇▇▇▇ Subsidiaries shall cease to have any liability or obligation whatsoever
with respect to any of the Company Retained Foreign Plans.
Section 2.05 Welfare Plans.
(a) As of the Cut-off Date, New ▇▇▇▇▇▇ shall assume or retain, or
cause a New ▇▇▇▇▇▇ Subsidiary to assume or retain, as the case may be, and shall
be solely responsible for, or cause its insurance carriers to be responsible
for, all liabilities and obligations whatsoever of the Company and its
subsidiaries whether or not incurred prior to the Cut-off Date in connection
with claims under any Welfare Plan (including any Welfare Plan providing for
post-retirement benefits) brought by or in respect of any New ▇▇▇▇▇▇ Individual
and the Company and the Company Subsidiaries shall cease to have any such
liability or obligation.
(b) New ▇▇▇▇▇▇ shall take, or cause to be taken, all actions
necessary and appropriate on behalf of itself and the New ▇▇▇▇▇▇ Subsidiaries
(i) to assume any existing Welfare Plan of the Company or any of its
subsidiaries, which Welfare Plan, as of the Cut-off Date, provides benefits
solely for New ▇▇▇▇▇▇ Individuals or (ii) otherwise to adopt such Welfare Plans
as necessary to provide welfare benefits, effective as of the Cut-off Date, and
in either case shall assume the liabilities and
-24-
obligations to New ▇▇▇▇▇▇ Individuals which are or shall become the
responsibility of New ▇▇▇▇▇▇ under Section 2.05(a). For this purpose with
respect to any New ▇▇▇▇▇▇ individual, New ▇▇▇▇▇▇ or a New ▇▇▇▇▇▇ Subsidiary
shall, to the extent applicable, credit such New ▇▇▇▇▇▇ Individual with term of
service and consider such New ▇▇▇▇▇▇ Individual to have satisfied any other
eligibility criteria (including satisfaction of applicable deductibles or
coinsurance amounts) as of the Cut-off Date as if such service had been rendered
to New ▇▇▇▇▇▇ or the New ▇▇▇▇▇▇ Subsidiary and as if such eligibility criteria
had been satisfied while employed by New ▇▇▇▇▇▇ or the New ▇▇▇▇▇▇ Subsidiary. In
connection with the foregoing, the Company agrees to provide New ▇▇▇▇▇▇ or its
designated insurance representative with such information (in the possession of
the Company or any Company Subsidiary and not already in the possession of New
▇▇▇▇▇▇ or a New ▇▇▇▇▇▇ Subsidiary) as may be reasonably requested by New ▇▇▇▇▇▇
and necessary for New ▇▇▇▇▇▇ and the New ▇▇▇▇▇▇ Subsidiaries to assume or
establish any such Welfare Plan.
(c) The Company shall take, or cause to be taken, all actions
necessary and appropriate to direct the trustee of the Company VEBA to transfer
in cash to the new trustee or other funding agent appointed by New ▇▇▇▇▇▇ for a
trust arrangement similar to the Company VEBA the amount of assets in such trust
determined by the Accountants to be attributable as of the last day of the month
in which the Cut-off Date occurs
-25-
to contributions (and earnings thereon) made by the employees who are New ▇▇▇▇▇▇
Employees. The Company shall, as soon as practicable after the Distribution
Date, provide New ▇▇▇▇▇▇ with such additional information (not already in the
possession of New ▇▇▇▇▇▇ or the New ▇▇▇▇▇▇ Subsidiaries) as may be reasonably
requested by New ▇▇▇▇▇▇ and necessary in order for the New ▇▇▇▇▇▇ Subsidiaries
to manage effectively the trust assets transferred in accordance with this
Section 2.05(c).
(d) The Company and the Company Subsidiaries shall assume, or
retain, all liabilities and obligations whatsoever of the Company and its
subsidiaries for benefits under any Welfare Plan other than as set forth in
Section 2.05(a).
Section 2.06 Stock Option Plans. The Company and New ▇▇▇▇▇▇ shall
cooperate and take all action necessary (including obtaining the consent of the
holders of the Company Options, if required, and, if deemed necessary or
appropriate, seeking a "no-action" letter or interpretive advice from the
Commission) to amend (if necessary) the Company Option Plan and to adopt the New
▇▇▇▇▇▇ Option Plan so that as of the Distribution Date, each Company Option
which is outstanding and not exercised immediately prior to the Distribution
Date and which is held by a New ▇▇▇▇▇▇ Individual shall, without any action on
the part of the holder thereof, be converted into an option to purchase shares
of New ▇▇▇▇▇▇ Common Stock, the number of shares of New ▇▇▇▇▇▇ Common Stock
subject to, and the exercise
-26-
price of such option to be determined in accordance with, the requirements of
Section 424 of the Code and the regulations promulgated thereunder, based upon
(A) the average of the high and low trading prices on the New York Stock
Exchange for the Company Common Stock for each of the last five trading days
prior to the Ex-Distribution Date and (B) the average of the high and low
trading prices on the New York Stock Exchange for the New ▇▇▇▇▇▇ Common Stock
for each of the first five trading days following the Distribution Date on which
the New ▇▇▇▇▇▇ Common Stock is traded regular way on the New York Stock
Exchange; such option to be subject to substantially similar terms and
conditions as in effect prior to the conversion. The exercise price of any such
option shall be rounded to the nearest $.01; the number of shares subject to any
such option shall be rounded to the nearest share. Any related limited stock
appreciation rights or supplemental cash payment rights held by New ▇▇▇▇▇▇
Individuals shall be adjusted in a consistent manner and shall be assumed by,
and become the responsibility of, New ▇▇▇▇▇▇.
Section 2.07 Company Incentive Plans.
(a) The Company shall be responsible for the payment of all
liabilities and obligations for benefits due and payable or unpaid as of and
through the Cut-off Date under each Company Incentive Plan with respect to any
Prior Plan Year (other than the Current Plan Year). Any deferred bonuses that
were earned
-27-
with respect to any Prior Plan Year that are not paid as of the Cut-off Date
shall be treated as benefits for the Current Plan Year in accordance with
Section 2.07(b).
(b) Except as specifically provided in Section 2.06, for any Current
Plan Year under each Company Incentive Plan, the Company and the Company
Subsidiaries shall be responsible for the payment of all liabilities and
obligations for benefits unpaid as of and through the Cut-off Date (including
for deferred compensation) with respect to Company Individuals and New ▇▇▇▇▇▇
and the New ▇▇▇▇▇▇ Subsidiaries shall assume and be responsible for the payment
of all liabilities and obligations for benefits unpaid as of and through the
Cut-off Date (including for deferred compensation) with respect to New ▇▇▇▇▇▇
Individuals. Except as specifically provided in Section 2.06, each of the
Company and New ▇▇▇▇▇▇ will, to the extent practicable, either continue each
such Company Incentive Plan or adopt a new Plan in substitution therefor and, in
this connection, adjust, in a manner equitable to participants, any incentive
goals contained in each Company Incentive Plan to reflect the Distribution.
(c) For purposes of the Company Incentive Plans, individuals who, in
connection with the Distribution, cease to be employees of the Company and
become New ▇▇▇▇▇▇ Employees shall not be deemed to have terminated employment
for purposes of any deferral elections made by such individuals and service
-28-
with New ▇▇▇▇▇▇ shall be deemed continuous service with the Company.
Section 2.08 Severance Pay.
(a) New ▇▇▇▇▇▇ and the Company agree that, with respect to
individuals who, in connection with the Distribution, cease to be employees of
the Company and become New ▇▇▇▇▇▇ Employees, such cessation shall not be deemed
a severance of employment from the Company and its subsidiaries for purposes of
any Plan of the Company or any of its subsidiaries that provides for the payment
of severance, salary continuation or similar benefits and shall, in connection
with the Distribution, if and to the extent appropriate obtain waivers from
individuals against any such assertion.
(b) Notwithstanding anything in the Agreement to the contrary, the
Company and the Company Subsidiaries shall assume and be solely responsible for
all liabilities and obligations whatsoever in connection with claims made by or
on behalf of the Company Individuals and New ▇▇▇▇▇▇ and the New ▇▇▇▇▇▇
Subsidiaries shall assume and be solely responsible for all liabilities and
obligations whatsoever in connection with claims made by or on behalf of New
▇▇▇▇▇▇ Individuals in respect of severance pay, salary continuation and similar
obligations relating to the termination or alleged termination of any such
person's employment either before, to the extent unpaid on the Cut-off Date, or
on or after the Cut-off Date.
-29-
Section 2.09 Company Restricted Trust.
(a) Effective as of the Distribution Date, New ▇▇▇▇▇▇ shall or shall
cause one or more New ▇▇▇▇▇▇ Subsidiaries, as appropriate, to assume or retain,
as the case may be, and be solely responsible for, all assets, liabilities and
obligations whatsoever of the Company and its subsidiaries with respect to New
▇▇▇▇▇▇ Individuals to the extent such liabilities are funded as of the Cut-off
Date under the Company Restricted Trust. In this connection, New ▇▇▇▇▇▇ agrees
to establish one or more trusts substantially similar to the Company Restricted
Trust to hold the assets attributable to such liabilities and the Company agrees
to take such action as may be necessary to amend the Company Restricted Trust to
effectuate the purposes of this Section 2.09 and to direct the trustee of the
Company Restricted Trust to transfer to the new trustee or other funding agent
appointed by New ▇▇▇▇▇▇ the amount of assets, plus the portion of any
unallocated contributions and trust earnings, determined by the Enrolled Actuary
in accordance with the procedures set forth on Annex II hereto to be
attributable to New ▇▇▇▇▇▇ Individuals. Such transfer shall be made in cash,
securities, other property or a combination thereof, as determined by the
Company and New ▇▇▇▇▇▇.
-30-
Section 2.10 Company Miscellaneous Plans; Post-Distribution
Liabilities.
(a) The Company and the Company Subsidiaries shall be solely
responsible for the payment of all liabilities and obligations whatsoever with
respect to any Company Individual unpaid as of and through the Cut-off Date
under any Company Miscellaneous Plan and New ▇▇▇▇▇▇ and the New ▇▇▇▇▇▇
Subsidiaries shall assume and be solely responsible for the payment of all
liabilities and obligations whatsoever with respect to any New ▇▇▇▇▇▇ Individual
unpaid as of and through the Cut-off Date under any Company Miscellaneous Plan.
(b) The Company and the Company Subsidiaries shall be solely
responsible for the payment of all liabilities and obligations whatsoever
arising with respect to any Company Individual and attributable to any period
subsequent to the Cut-off Date and New ▇▇▇▇▇▇ and the New ▇▇▇▇▇▇ Subsidiaries
shall be solely responsible for the payment of all liabilities and obligations
whatsoever arising with respect to any New ▇▇▇▇▇▇ Individual and attributable to
any period subsequent to the Cut-off Date.
Section 2.11 Collective Bargaining Agreements; Labor Management
Relations Act. New ▇▇▇▇▇▇ agrees that it shall assume and discharge all of the
liabilities and obligations of the Company and its subsidiaries relating to New
▇▇▇▇▇▇ Individuals which have not been satisfied as of and through the
-31-
Cut-off Date with respect to any Collective Bargaining Agreement, and to be
bound by any and all provisions of such Collective Bargaining Agreements with
respect to such New ▇▇▇▇▇▇ Individuals as if New ▇▇▇▇▇▇ or a New ▇▇▇▇▇▇
Subsidiary were the signatory employer. The provisions of this Section 2.11 are,
to the extent applicable, governed by and subject to the Labor Management
Relations Act, as amended.
Section 2.12 Other Balance Sheet Adjustments. To the extent not
otherwise provided in this Agreement, the Company and New ▇▇▇▇▇▇ shall take such
action as is necessary to effect an adjustment to the books of the Company and
New ▇▇▇▇▇▇ so that, as of the Cut-off Date, the prepaid expense balances and
accrued liabilities with respect to any employee liability or obligation assumed
or retained as of the Cut-off Date by the Company and the Company Subsidiaries,
on the one hand, and New ▇▇▇▇▇▇ and the New ▇▇▇▇▇▇ Subsidiaries, on the other
hand, are appropriately reflected on the respective consolidated balance sheets
as of the Cut-off Date, respectively, of the Company and New ▇▇▇▇▇▇.
Section 2.13 Preservation of Rights To Amend or Terminate Plans. No
provisions of this Agreement, including, without limitation, the agreement of
the Company or New ▇▇▇▇▇▇ that it, or any Company Subsidiary or New ▇▇▇▇▇▇
Subsidiary, will make a contribution or payment to or under any Plan herein
referred to for any period, shall be construed as a limitation
-32-
on the right of the Company or New ▇▇▇▇▇▇ or any Company Subsidiary or New
▇▇▇▇▇▇ Subsidiary to amend such Plan or terminate its participation therein
which the Company or New ▇▇▇▇▇▇ or any Company Subsidiary or New ▇▇▇▇▇▇
Subsidiary would otherwise have under the terms of such Plan or otherwise, and
no provision of this Agreement shall be construed to create a right in any
employee or former employer or beneficiary of such employee or former employee
under a Plan which such employee or former employer or beneficiary would not
otherwise have under the terms of the Plan itself.
Section 2.14 Reimbursement; Indemnification. The Company and New
▇▇▇▇▇▇ acknowledge that the Company and the Company Subsidiaries, on the one
hand, and New ▇▇▇▇▇▇ and the New ▇▇▇▇▇▇ Subsidiaries, on the other hand, may
incur costs and expenses (including, but not limited to, contributions to Plans
and the payment of insurance premiums) arising from or related to any of the
Plans which are, as set forth in this Agreement, the responsibility of the other
party hereto. Accordingly, the Company (and any Company Subsidiary responsible
therefor) and New ▇▇▇▇▇▇ (and any New ▇▇▇▇▇▇ Subsidiary responsible therefor)
agree to reimburse each other, as soon as practicable but in any event within 30
days of receipt from the other party of appropriate verification, for all such
costs and expenses reduced by the amount of any tax reduction or recovery of tax
benefit realized by the Company or New ▇▇▇▇▇▇, as the case may
-33-
be, in respect of the corresponding payment made by it; provided, however, that
notwithstanding anything in this Section 2.14 to the contrary, costs and
expenses or other recovery arising from any challenge by the U.S. Government to
the allocation of assets set forth in Section 2.03 shall not be subject to
reimbursement and indemnification under this Agreement or the Distribution
Agreement. All liabilities and obligations retained, assumed or indemnified by
New ▇▇▇▇▇▇ or any New ▇▇▇▇▇▇ Subsidiary pursuant to this Agreement, in each
case, shall be deemed to be New ▇▇▇▇▇▇ Liabilities, as defined in the
Distribution Agreement, and all liabilities retained, assumed or indemnified by
the Company or any Company Subsidiary pursuant to this Agreement, shall be
deemed to be Safety Liabilities, as defined in the Distribution Agreement, and,
in each case, shall be subject to the indemnification provisions set forth in
Article V thereof.
Section 2.15 Further Transfers. The Company and New ▇▇▇▇▇▇ recognize
that there may be New ▇▇▇▇▇▇ Individuals who will, after the Distribution Date,
become employed by the Company and there may be Company Individuals who become
employed, after the Distribution Date, by New ▇▇▇▇▇▇. Any such transfers or
assumptions will be considered to be governed by the terms of this Agreement and
shall not require the agreement of the Company and New ▇▇▇▇▇▇ if they occur
within 12 months of the Distribution Date. After such date, if the Company and
New
-34-
▇▇▇▇▇▇ so agree with respect to any such individuals, the assets and liabilities
with respect to such employees which are associated with the plans and programs
described in this Agreement may be transferred and assumed in a manner
consistent with this Agreement. Any costs associated with or arising out of such
transfers and assumptions shall be borne by the party that becomes the new
employer of the transferred individual.
ARTICLE III
MISCELLANEOUS
Section 3.01 Complete Agreement; Construction. This Agreement,
including the Schedules and Annexes hereto and the agreements and documents
referred to herein, shall constitute the entire agreement between the parties
with respect to the subject matter hereof and shall supersede all previous
negotiations, commitments and writings with respect to such subject matter.
Notwithstanding any other provisions in this Agreement or the Distribution
Agreement to the contrary, in the event and to the extent that there shall be a
conflict between the provisions of the Distribution Agreement and this
Agreement, the provisions of this Agreement shall control, except with respect
to Section 9.03 of the Distribution Agreement, which shall control over any
contrary provision hereof.
Section 3.02 Guarantee of Subsidiaries' Obligations. The Company
shall cause to be performed, and hereby guarantees
-35-
the performance and payment of, all actions, agreements, obligations and
liabilities set forth herein to be performed or paid by the Company Subsidiaries
and New ▇▇▇▇▇▇ shall cause to be performed, and hereby guarantees the
performance and payment of, all actions, obligations and liabilities set forth
herein to be performed or paid by the New ▇▇▇▇▇▇ Subsidiaries.
Section 3.03 Failure of the Company and New ▇▇▇▇▇▇ To Agree on
Certain Determinations. In any case in which the Company shall disagree with the
determination of an amount which this Agreement requires to be made by the
Enrolled Actuary or the Accountants (as the case may be), the Company shall have
the right within 30 days after receipt of notice of such determination and
back-up workpapers to engage at the expense of the Company, an enrolled actuary
(or "Big Six" accounting firm) to make the determination of such amount. If the
amount determined by such actuaries (or "Big Six" accounting firm) should
differ, such amount shall be finally determined by another enrolled actuary (or
"Big Six" accounting firm) selected by agreement between or among the Enrolled
Actuary (or the Accountants) and the enrolled actuary or enrolled actuaries (or
Big Six accounting firm or firms) for the Company, whose fees and expenses shall
be borne solely by the Company.
Section 3.04 Governing Law. Subject to applicable federal law, this
Agreement shall be governed by and construed
-36-
in accordance with the laws of the State of Delaware, without regard to the
principles of conflicts of laws thereof.
Section 3.05 Notices. All notices and other communications hereunder
shall be in writing and shall be delivered by hand or mailed by registered or
certified mail (return receipt requested) to the parties at the following
addresses (or at such other addresses for a party as shall be specified by like
notice) and shall be deemed given on the date on which such notice is received:
To the Company:
[Name to come]
[3350 Airport Road]
[▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇]
Attention: Corporate Secretary
with a copy to:
Autoliv, Inc.
[Address To Come]
Attention: Corporate Secretary
and
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Esq.
To New ▇▇▇▇▇▇:
[New] ▇▇▇▇▇▇ International, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Secretary
with a copy to:
Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Section 3.06 Amendments. This Agreement may not be modified or
amended except by an agreement in writing signed by the parties.
Section 3.07 Successors and Assigns. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
and their respective successors and permitted assigns.
Section 3.08 Termination. This Agreement may be terminated in the
event that the Distribution Agreement is terminated and the Distribution
abandoned prior to the Distribution Date. In the event of such termination,
neither party shall have any liability of any kind to the other party.
Section 3.09 No Third Party Beneficiaries. This Agreement is solely
for the benefit of the parties hereto and their respective subsidiaries and
should not be deemed to confer upon third parties any remedy, claim, liability,
reimbursement, claim of action or other right in excess of those existing
without reference to this Agreement.
Section 3.10 Titles and Headings. Titles and headings to sections
herein are inserted for the convenience of reference only and are not intended
to be a part of or to affect the meaning of or interpretation of this Agreement.
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Section 3.11 Schedules. The Schedules shall be construed with and as
an integral part of this Agreement to the same extent as if the same had been
set forth verbatim herein.
Section 3.12 Legal Enforceability. Any provision of this Agreement
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof. Any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed as of the day and year first above written.
▇▇▇▇▇▇ INTERNATIONAL, INC.
By ________________________________
Title:
NEW ▇▇▇▇▇▇ INTERNATIONAL, INC.
By ________________________________
Title:
